12/4/2012: It takes a heavy hand to enforce the NCAA’s rules against letting college football players get any of the fruits of their labor. UO’s Faculty Athletics Representative Jim O’Fallon sits on the NCAA Infractions Committee that wields the lash – and he was lucky he recused himself from this particular case. The assistant coach they went after is now fighting back with a defamation lawsuit that seems likely to expose some of that committee’s sleazier practices. Joe Nocera has the story in the NYT.

This post (or perhaps these photos) have provoked a response from a noted UO law professor. I asked him about rumored threats of a defamation lawsuit from him, and got this:

Not sure what the rumor says. I have commented to some people that I am tired of your defamatory remarks and wondered how you would respond if confronted by the need to defend a lawsuit. Defamation claims can extend to any publication. …

Before he started shilling for the NCAA O’Fallon’s area of expertise was apparently the First Amendment. Of course. So why should I remove your name from a public forum discussing matters of public importance, Professor O’Fallon?

He’s trying to scare you. But given the public nature of this blog and its apparently relentless pursuit of matters of public importance, Oregon law gives you ever possible advantage.

O’Fallon will lose and he will then have to pay your attorney fees. Note the last line of the statute: “are to be liberally construed in favor of the exercise of the rights of expression”

When he loses he will have to pay your legal bills. And you will have lawyers lining up to represent you. Smart, well trained lawyers who believe in freedom of speech. Expensive lawyers.

Ignore this threat, and just blog on.

31.150 Special motion to strike; when available; burden of proof. (1) A defendant may make a special motion to strike against a claim in a civil action described in subsection (2) of this section. The court shall grant the motion unless the plaintiff establishes in the manner provided by subsection (3) of this section that there is a probability that the plaintiff will prevail on the claim. The special motion to strike shall be treated as a motion to dismiss under ORCP 21 A but shall not be subject to ORCP 21 F. Upon granting the special motion to strike, the court shall enter a judgment of dismissal without prejudice. If the court denies a special motion to strike, the court shall enter a limited judgment denying the motion. (2) A special motion to strike may be made under this section against any claim in a civil action that arises out of: …

(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or (d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (3) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection (2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. If the plaintiff meets this burden, the court shall deny the motion. (4) In making a determination under subsection (1) of this section, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (5) If the court determines that the plaintiff has established a probability that the plaintiff will prevail on the claim: …

31.152 Time for filing special motion to strike; discovery; attorney fees. (1) A special motion to strike under ORS 31.150 must be filed within 60 days after the service of the complaint or, in the court’s discretion, at any later time. A hearing shall be held on the motion not more than 30 days after the filing of the motion unless the docket conditions of the court require a later hearing. … (3) A defendant who prevails on a special motion to strike made under ORS 31.150 shall be awarded reasonable attorney fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney fees to a plaintiff who prevails on a special motion to strike. …

This section and ORS 31.150 and 31.155 are to be liberally construed in favor of the exercise of the rights of expression described in ORS 31.150 (2). [Formerly 30.144; 2009 c.449 §3]

In Oregon it’s unlikely that you’d be able to get counter damages from him by using the anti-SLAPP law to defend against a defamation lawsuit. But your attorneys will be well rewarded for defending you aggressively, and maybe they’ll share a bottle or two after the court awards them their fees.

Under the law you will have 60 days from service to file a motion to strike – plenty of time to shop around and find an attorney to file a motion to strike. Meanwhile give him nothing, of course.

This professor O’Fallon emails like a ignorant blowhard. Too bad he wasn’t part of the McNair investigation, because it sounds like those NCAA emails will be public soon.

Your description of James O’Fallon as a “noted UO law professor” is defamation per se of the many UO law professors who actually are noted. But since this is a public forum, I don’t think any of them would be so reckless as to file a claim against you. Sleep the sleep of the just, friend.

Seriously? He studies the first amendment? The original argument for anti-SLAPP laws was the first amendment protection of the right to petition the government for redress of grievances. Free discussion is a necessary part of that protection. Either he’s a fool or he thinks you and your readers are.

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